Bill Lauderdale v. DeSoto County, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00744-COA
BILL LAUDERDALE D/B/A BUMPS & RUTS APPELLANT/CROSS-
MOTORCROSS TRACK APPELLEE
v.
DESOTO COUNTY, MISSISSIPPI, BY AND APPELLEE/CROSS-
THROUGH ITS BOARD OF SUPERVISORS APPELLANT
DATE OF JUDGMENT: 04/04/2014
TRIAL JUDGE: HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WILLIAM P. MYERS
ATTORNEYS FOR APPELLEE: JOSEPH DAVID NEYMAN JR.
ROBERT E. QUIMBY
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED APPELLANT’S CLAIM FOR
DAMAGES RELATED TO THE GRANT OF
A TEMPORARY RESTRAINING ORDER
AND A PRELIMINARY INJUNCTION, AND
GRANTED APPELLANT’S CLAIM FOR
ATTORNEY’S FEES AND EXPENSES
INCURRED IN DEFENDING AGAINST A
PERMANENT INJUNCTION
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.
CARLTON, J., FOR THE COURT:
¶1. This appeal arises from the DeSoto County Chancery Court’s judgment denying Bill
Lauderdale’s claim against DeSoto County for monetary damages related to a temporary
restraining order (TRO) and a preliminary injunction but granting Lauderdale’s claim for the
attorney’s fees and expenses he incurred in defending against the County’s application for
a permanent injunction.
¶2. The procedural history reflects that, in response to a public racing event Lauderdale
held at his motocross track on the weekend of May 25, 2012, the County filed an application
for a TRO, a preliminary injunction, and a permanent injunction against Lauderdale to enjoin
specific public events at the track on specific dates in June, August, and September 2012.
In considering the County’s application, the chancellor granted the County a TRO against
Lauderdale on June 8, 2012, to prohibit an additional public race from being held the
weekend of June 9, 2012. The next month, on July 2, 2012, the chancellor granted the
County a preliminary injunction against Lauderdale. The preliminary injunction closed the
track for two specific events scheduled for the weekends of August 10, 2012, and September
7, 2012. The chancellor granted the preliminary injunction after finding that, following the
TRO’s expiration, Lauderdale hosted yet another public racing event the weekend of June
23, 2012, without giving the County the requisite notice. As the record reflects, both the
TRO and the preliminary injunction expired pursuant to their own terms without Lauderdale
raising a motion to dissolve or modify either. The preliminary injunction expired on
September 9, 2012.
¶3. On July 2, 2012, the County filed its amended application for a permanent injunction
against Lauderdale to enjoin newly scheduled public racing events to be held after the
expiration of the preliminary injunction. The newly scheduled events were set for September
2
30, 2012, and December 9, 2012. On August 13, 2012, the chancellor entered an order of
continuance on the County’s amended application for a permanent injunction. The
chancellor acknowledged in her order that Lauderdale had retained counsel. The record
shows that, upon expiration of the preliminary injunction, the chancellor ordered no further
injunction. On April 3, 2013, Lauderdale filed his answer to the County’s amended
application for a permanent injunction. The record reflects that Lauderdale filed his answer
well after the occurrence of the September 30, 2012 and December 9, 2012 racing events
cited in the County’s amended application. On April 18, 2013, after a hearing on the
County’s amended application, the chancellor entered an order denying the County’s request
for a permanent injunction.
¶4. Lauderdale subsequently filed a motion on April 22, 2013, seeking to recover damages
and attorney’s fees related to the County’s actions for the TRO and the preliminary injunction
and its amended application for the permanent injunction. On April 8, 2014, the chancellor
entered an order denying Lauderdale’s request for damages but awarding the attorney’s fees
that Lauderdale incurred in defending against the County’s amended application for a
permanent injunction. The record shows that the chancellor awarded Lauderdale attorney’s
fees even though she denied the County’s amended application for a permanent injunction
and even though she also found that Lauderdale was never wrongfully enjoined by the TRO
or the preliminary injunction.
¶5. In appealing the chancellor’s judgment, Lauderdale challenges the denial of his
3
request for monetary damages related to the grant of the June 2012 TRO and the July 2012
preliminary injunction. Specifically, Lauderdale raises the following issues: (1) whether the
chancellor abused her discretion by granting the County’s application for a TRO on June 8,
2012, and a preliminary injunction on July 2, 2012; and (2) whether Lauderdale presented
sufficient evidence to prove he suffered monetary damages due to the allegedly improper
TRO and preliminary injunction. On cross-appeal, the County alternatively argues that the
chancellor abused her discretion by awarding Lauderdale the attorney’s fees and expenses
he incurred in defending against the County’s amended application for a permanent
injunction.
¶6. As set forth herein, we find substantial evidence in the record to support the
chancellor’s grant of both the TRO and the preliminary injunction.1 We therefore find no
abuse of discretion resulting from the chancellor’s grant of either the TRO or the preliminary
injunction. We further find that the chancellor abused her discretion by erroneously
awarding Lauderdale the attorney’s fees and expenses he incurred in defending against the
County’s unsuccessful amended application for a permanent injunction since neither
Lauderdale nor the track was ever wrongfully enjoined.2 As a result, we affirm in part and
reverse and render in part the chancellor’s judgment.
1
See Sec’y of State v. Gunn, 75 So. 3d 1015, 1020 (¶13) (Miss. 2011) (stating that
the appellate court will not disturb the chancellor’s factual findings when supported by
substantial evidence unless the chancellor abused her discretion, was manifestly wrong or
clearly erroneous, or applied an erroneous legal standard).
2
See Miss. Code Ann. § 11-13-37 (Rev. 2004); M.R.C.P. 65(c).
4
¶7. We now turn to a more detailed recitation of the facts in this case.
FACTS
¶8. The dispute and related injunctions in this case stem from a conditional-use permit the
County granted to a motocross track and from Lauderdale’s alleged failure to comply with
the terms of the conditional-use permit. In 2011, Randy Smith applied to the DeSoto County
Board of Adjustment for a conditional use to operate a private motocross track on
agriculturally zoned land. On June 13, 2011, the Board of Adjustment met to discuss and
vote on Smith’s conditional-use application. The minutes from the Board of Adjustment’s
meeting reflect that Smith informed the Board of Adjustment that about fifteen families were
involved in the creation of the track and that the families hoped to provide a safe place for
their children to ride motocross bikes. The report further noted Smith’s statements that the
families would “like to have the ability to allow other individuals on a limited basis to use
the facility” but that the venture was “not meant to be a money[-]making project.”
¶9. According to the minutes report, when asked whether races would be held at the track,
Smith informed the Board of Adjustment that there would be no “sanctioned races, but [we]
may hold small races among members to help provide safety gear as needed.” As also
reflected in the meeting minutes, Smith assured the Board of Adjustment that “[we] do not
wish to open [the track] completely for public use, but [we] would like the flexibility to be
able to allow some kids to use the track who would not have anywhere else to ride.” In
addition, Smith reiterated that “the track will not be opened for the general public to use, it
5
will be used only by members of the private club[,] and . . . no more than 20 motorcycles will
be on the track at any time.”3
¶10. Subject to several requirements, the Board of Adjustment approved Smith’s
conditional-use application. The requirements stated that the Board of Adjustment’s
approval was for a three-year term to expire on June 13, 2014. The requirements also set the
track’s hours of operation from 9 a.m. to 6 p.m. on Monday through Saturday and from 11
a.m. to 5 p.m. on Sunday. In addition, the requirements stated that “[p]lans for any further
organized events shall be presented to the Planning Commission Officer and Sheriff’s
Department [thirty] days prior to the event date[.]”
¶11. Following the grant of the conditional-use permit, the track was asked to host two
sanctioned public racing events in 2012, with the events to occur on four separate weekends.
Because the events usually lasted longer than the operating hours established by the
conditional-use permit, Lauderdale filed a second application with the Board of Adjustment
on February 28, 2012, to expand the terms of the conditional-use permit. On the new
application, Lauderdale asked the Board of Adjustment to permit “extended hours and special
events.” The Board of Adjustment, however, denied Lauderdale’s request to expand the
conditional-use permit.
3
The minutes report reflects that neighbors of the track were also allowed to share
their concerns about the track. One neighbor expressed concern about the track’s hours on
Sundays and about whether he and other nearby residents would be able to enjoy some quiet
time in their yards in the evenings.
6
¶12. At its April 9, 2012 meeting, the Board of Adjustment discussed Lauderdale’s request
to expand the conditional-use application previously granted to the track on June 13, 2011.
The report detailing the April 9, 2012 meeting minutes stated the following:
With this application, [Lauderdale] is requesting to be allowed to host two
series race events at the approved . . . track site[,] which would take place on
four (4) dates in 2012. . . . Each of [the] four dates falls on a Sunday and would
require expanded hours of operation, from [8 a.m.] until [8 p.m.], on the
specified race event dates. The applicant is also asking to expand hours of
operation until 8 p.m. during the summer months to facilitate use of the track[.]
¶13. The meeting minutes further reflected that, in support of his request to expand the
conditional-use permit, Lauderdale told the Board of Adjustment he expected about 100
racers and about 200 to 300 spectators to attend the events. One member of the Board of
Adjustment recalled that, when Smith sought the original conditional-use application for the
track, Smith stated there would never be public races at the site. In reply, Lauderdale
explained that he never expected to receive an invitation to join the two racing events when
the track first began.
¶14. The Board of Adjustment also heard from members of the community who objected
to the expansion of the conditional-use permit. Several of the neighbors expressed
displeasure over the amount of noise associated with the track. One neighbor also objected
to the track holding sanctioned race events since he was told that only a few families
intended to use the track. In addition, one neighbor raised concerns over environmental
issues related to the track, such as fuel spills, wind erosion, and soil erosion. Yet another
neighbor complained that the track created traffic-safety issues.
7
¶15. After discussing the matter, the Board of Adjustment voted to deny Lauderdale’s
application to expand the conditional-use permit to allow the track to host the race events and
to extend its operating hours on the four specified dates and during the summer months. The
Board of Adjustment explained its denial by stating that the requested extension “would
increase traffic hazards or congestion and would adversely affect the character of the
neighborhood.”
¶16. Following the Board of Adjustment’s denial of his application, Lauderdale timely
appealed to the County’s Board of Supervisors. On May 7, 2012, the Board of Supervisors
heard Lauderdale’s appeal. During the Board of Supervisors’ meeting, neighbors of the track
again shared their concerns and complaints about the track and the proposed expansion of
the conditional-use permit. In addition to expressing concern that the track created a safety
issue for the community, many of the neighbors complained that the noise from the track
prevented them from enjoying their yards. One neighbor also stated that he had understood
the track was only supposed to be used by a few families and was not intended as a money-
making project.
¶17. The Board of Supervisors also heard from Lauderdale and the supporters of his
application to expand the conditional-use permit. Lauderdale explained to the Board of
Supervisors that he tried to alleviate some of the concerns raised by the track neighbors by
reducing the event hours. In addition, Lauderdale presented his plans for preparing the track
to host the race events and to adequately address any issues that might arise. After
8
considering all the testimony and evidence, the Board of Supervisors voted to uphold the
Board of Adjustment’s denial of Lauderdale’s application. Lauderdale asserted no appeal
from the Board of Supervisors’ ruling.
¶18. Despite the denial of his application to expand the conditional-use permit, Lauderdale
still held the first of the race events on the weekend of May 25, 2012. In response to
Lauderdale’s action of holding the race event the weekend of May 25, 2012, the County filed
an application on June 6, 2012, for a TRO, a preliminary injunction, and a permanent
injunction to prevent Lauderdale from hosting the second race event scheduled for the
weekend of June 9, 2012. In its application, the County argued that the racing event would
violate the County’s zoning ordinances and create a public nuisance with public health
issues.
¶19. On June 8, 2012, the chancellor held a hearing on the County’s application for a TRO.
The chancellor found the County had shown “a probability of success on the merits regarding
factual allegations” that Lauderdale hosted a racing event the weekend of May 25, 2012,
despite the Board of Supervisors’ denial of “the expansion of [Lauderdale’s] conditional use
to allow him to have that race event on that date.” The chancellor further found that
Lauderdale had advertised online that his track was hosting a second racing event the
weekend of June 9, 2012, even though the Board of Supervisors specifically denied his
request to expand the conditional-use permit to allow that event. The chancellor also
determined that the County had “shown a probability of success on the merits” as to its claim
9
that Lauderdale was creating a public nuisance with public health concerns.
¶20. Based on her findings, the chancellor granted the County’s application for a TRO. By
its own terms, the TRO expired two days later on June 10, 2012.4 The chancellor ordered the
track to be closed the weekend of June 9, 2012, to prevent Lauderdale from holding the
second scheduled public racing event that he was advertising in violation of his conditional-
use permit. With regard to the County’s application for a permanent injunction, the
chancellor continued the matter until July 2, 2012. Despite the chancellor’s order, on June
23, 2012, Lauderdale held another public racing event by rescheduling the race originally
scheduled for the weekend of June 9, 2012. Lauderdale held the event without giving the
County the thirty days’ notice required by the conditional-use permit.
¶21. On July 2, 2012, the chancellor again held a hearing on the County’s application. In
her order issuing a preliminary injunction, the chancellor found that, despite being personally
served with notice of the July 2, 2012 hearing, Lauderdale failed to appear. The chancellor
also found that Lauderdale had indeed scheduled and hosted a racing event on the weekend
of June 23, 2012, without giving the necessary thirty days’ notice to the Planning
Commission.
¶22. During the July 2, 2012 hearing, the chancellor granted the County a preliminary
injunction to prohibit specific upcoming public racing events advertised for the weekends
4
The record reflects that Lauderdale made no motion to dissolve or modify the TRO
as allowed by Mississippi Rule of Civil Procedure 65(b).
10
of August 10, 2012, and September 7, 2012. The chancellor again continued the County’s
remaining application matters. As the record reflects, and as the chancellor acknowledged
in her order granting the preliminary injunction, Lauderdale failed to appear at the July 2,
2012 hearing despite his receipt of sufficient notice. Furthermore, Lauderdale raised no
motion to modify or dissolve the preliminary injunction issued against him. In accordance
with its own terms, the preliminary injunction expired on September 9, 2012. Even though
the chancellor continued the hearing on the application for a permanent injunction, and even
though the preliminary injunction expired, the chancellor never ordered any further
injunctions.
¶23. The record shows that, in its amended application filed on July 2, 2012, the County
provided newly discovered information about additional public racing events that Lauderdale
scheduled for September 30, 2012, and December 9, 2012. The County asserted that, in
violation of the Board of Supervisors’ decision and the chancellor’s preliminary injunction
order, Lauderdale moved two of the events enjoined by the preliminary injunction to the new
dates in September and December 2012. The County further argued in the amended
application that, by rescheduling the events for September 30, 2012, and December 9, 2012,
Lauderdale had circumvented the preliminary injunction that expired by its own terms on
September 9, 2012. In addition, the County contended that a permanent injunction was
necessary because a death had occurred at the race track, because Lauderdale had violated
the conditional-use permit and its thirty-day-notice requirement, and because the public race
11
events had created a public nuisance for the community.
¶24. As discussed, after the County amended its application for a permanent injunction, the
chancellor continued the matter by order dated August 13, 2012. The record reflects that no
further injunction issued after the preliminary injunction expired on September 9, 2012, and
no new injunction issued to prohibit the new races cited in the County’s amended application,
which Lauderdale scheduled for September 30, 2012, and December 9, 2012. On January
4, 2013, the chancellor set the hearing on the County’s amended application for April 4,
2013, after the September 30, 2012 and the December 9, 2012 racing events.
¶25. On April 3, 2013, Lauderdale filed his answer to the County’s amended application
for a permanent injunction. The next day, on April 4, 2013, the chancellor held the hearing
on the County’s amended application. In denying the County’s request for a permanent
injunction, the chancellor found that the County presented insufficient evidence to support
its amended application. The chancellor concluded that the conditional-use permit only
required Lauderdale to provide thirty days’ notice to the County of any organized events, and
she found that the thirty-day prior-notice requirement provided a sufficient prospective
remedy.5 Although she concluded that Lauderdale previously violated the Board of
Supervisors’ direct order by hosting the racing events in May and June 2012, the chancellor
found that Lauderdale’s actions failed to also violate a requirement of the conditional-use
5
The conditional-use permit required Lauderdale to give the sheriff’s department and
the Planning Commission thirty days’ prior notice of any future organized events.
12
permit so long as he met the thirty-day prior-notice requirement. The chancellor therefore
granted Lauderdale’s motion to dismiss the County’s amended application for a permanent
injunction.
¶26. Following the chancellor’s ruling, Lauderdale filed a motion to recover damages and
fees. Lauderdale argued that the County improperly sought the TRO and the preliminary
injunction. In considering Lauderdale’s motion, the chancellor found sufficient evidence to
support the issuance of both the TRO and the preliminary injunction. The chancellor
concluded that Lauderdale presented insufficient evidence to show he suffered monetary
damages resulting from the County’s request for, and the chancellor’s issuance of, the TRO
and the preliminary injunction. The chancellor therefore denied Lauderdale’s claim for
damages related to the issuance of the TRO and the preliminary injunction.
¶27. The chancellor next found, however, that Rule 65 of the Mississippi Rules of Civil
Procedure entitled Lauderdale to recover the attorney’s fees and expenses he incurred in
defending against the County’s amended application for a permanent injunction. The
chancellor therefore awarded Lauderdale a monetary judgment of $9,661.39. Aggrieved by
the chancellor’s award of attorney’s fees and expenses to Lauderdale, the County filed a
motion for reconsideration.
¶28. Following the denial of the County’s motion to reconsider, Lauderdale appealed from
the portion of the chancellor’s judgment denying the damages he claimed resulted from the
TRO and the preliminary injunction. The County filed a cross-appeal and argued that the
13
chancellor abused her discretion by awarding Lauderdale the attorney’s fees and expenses
he incurred in defending against the County’s amended application for a permanent
injunction.
STANDARD OF REVIEW
¶29. This Court will not disturb a chancellor’s findings of fact unless the findings were
manifestly wrong or clearly erroneous or unless the chancellor applied an erroneous legal
standard. Phillips v. Phillips, 45 So. 3d 684, 692 (¶23) (Miss. Ct. App. 2010). Where the
record contains substantial evidence to support the chancellor’s findings, we will not reverse
her decision. Id. However, we review questions of law de novo. Smith v. Wilson, 90 So. 3d
51, 56 (¶13) (Miss. 2012).
¶30. We acknowledge that motions for injunctions are within the chancellor’s discretion
to grant or deny. See City of Durant v. Humphreys Cty. Mem’l Hosp./Extended Care
Facility, 587 So. 2d 244, 250 (Miss. 1991). When determining whether to grant an
injunction, a chancellor must consider the following factors:
(1) [whether] there exists a substantial likelihood that [the] plaintiff will
prevail on the merits; (2) [whether] the injunction is necessary to prevent
irreparable harm; (3) [whether] the threatened harm to the applicant outweighs
the harm the injunction might do to the respondents; and (4) [whether] entry
of the injunction is consistent with the public interest.
Sec’y of State v. Gunn, 75 So. 3d 1015, 1020 (¶14) (Miss. 2011) (citation and internal
quotation marks omitted). With respect to the applicable burden of proof, we also
acknowledge that the factors to warrant an injunction must be established by a preponderance
14
of the evidence. His Way Inc. v. McMillin, 909 So. 2d 738, 744 (¶14) (Miss. Ct. App. 2005).
DISCUSSION
I. Whether the chancellor abused her discretion by granting the
County’s application for a TRO and a preliminary injunction.
II. Whether Lauderdale presented sufficient evidence to prove he
suffered monetary damages due to the allegedly improper TRO
and preliminary injunction.
¶31. On appeal, we will separately address the sufficiency of the TRO, the preliminary
injunction, and the County’s amended application for a permanent injunction. We recognize
that the TRO, the preliminary injunction, and the amended application for a permanent
injunction each address additional facts and different public racing events scheduled to occur
on different dates. The County’s amended application for a permanent injunction also
addresses whether a need existed for a continuing injunction or a permanent injunction.
¶32. We now turn to a review of the legal sufficiency of the TRO that the chancellor issued
on June 8, 2012, and that expired on June 10, 2012. We acknowledge that we review the
chancellor’s grant of a TRO and a preliminary injunction for abuse of discretion. See City
of Durant, 587 So. 2d at 250; Griffith v. Griffith, 997 So. 2d 218, 224 (¶25) (Miss. Ct. App.
2008).
A. The TRO
¶33. “A [TRO] may be issued where ‘immediate and irreparable injury, loss, or damage
will result to the applicant’ before such time as a hearing on the matter can be held.” See A-1
Pallet Co. v. City of Jackson, 40 So. 3d 563, 567 (¶13) (Miss. 2010) (quoting M.R.C.P.
15
65(b)(1)). A court may issue a TRO or a preliminary injunction even though a plaintiff’s
right to relief on the merits remains uncertain. See Gunn, 75 So. 3d at 1021 (¶17). As
reflected in the chancellor’s orders issuing the June 8, 2012 TRO and the July 2, 2012
preliminary injunction, the application for a TRO or a preliminary injunction involves no
final determination on the merits. See id. Instead, such relief serves to prevent a threatened
wrong, any further perpetration of injury, or the doing of an act pending the final
determination of the matter. See id.
¶34. The record reflects that the chancellor found that, when Lauderdale filed his
application to expand the conditional-use permit, he asked the Board of Adjustment to allow
him to host several public racing events and to extend the track’s hours to accommodate the
events. After the Board of Adjustment denied his application, Lauderdale appealed to the
Board of Supervisors. However, the Board of Supervisors upheld the Board of Adjustment’s
denial of Lauderdale’s application.6 Despite this adverse ruling, the record reflects that the
chancellor found that Lauderdale still held the first of the prohibited racing events in May
2012 and that he scheduled and advertised a second prohibited racing event at the track for
June 2012.
¶35. In her June 8, 2012 order, the chancellor concluded that she must grant a TRO to close
the track the weekend of June 9, 2012, to prevent the prohibited race. The chancellor also
6
The record reflects no appeal by Lauderdale for judicial review of the Board of
Supervisors’ denial of his request to expand the conditional-use permit.
16
determined the TRO was necessary to protect the public interest and to prevent the
community surrounding the track from suffering immediate and irreparable injury, loss, or
damage due to Lauderdale’s actions.7 In granting the TRO, the chancellor found the
evidence supported the County’s allegations that Lauderdale had hosted a racing event the
weekend of May 25, 2012, in violation of the Board of Supervisors’ order and the
conditional-use permit. The chancellor further determined that the evidence showed
Lauderdale also scheduled and advertised a second prohibited race to be held the weekend
of June 9, 2012.
¶36. Finding that Lauderdale had exhibited “willful and deliberate indifference” by
ignoring the Board of Supervisors’ decision, the chancellor issued the June 8, 2012 TRO and
closed the race track to prevent Lauderdale from hosting the public racing event the weekend
7
With respect to evidence of a threat or injury to the community and the public
interest, the record reflects that the County presented evidence of the online race advertising
and of the proceedings held by the Board of Adjustment and the Board of Supervisors. The
prior proceedings reflected that neighbors of the track attended both hearings to voice their
objections to the requested expansion. Multiple neighbors complained about the noise
generated by the track and the disruption to their enjoyment of outdoor activities on their
properties. One neighbor expressed concern about the local fire department’s ability to
respond to accidents at the track and commented on the traffic issues caused by all the
vehicles trying to enter and exit the track. Another neighbor expressed concern about the
environmental issues associated with the track, such as fuel spills, wind erosion, and soil
erosion.
The record reflects that, after considering all the testimony, the Board of Adjustment
found Lauderdale’s requested extension would substantially increase traffic hazards or
congestion and would adversely affect the character of the neighborhood around the track.
The Board of Adjustment therefore denied Lauderdale’s application. After holding its own
hearing and deliberations, the Board of Supervisors subsequently voted to uphold the denial.
17
of June 9, 2012. As stated, the record reflects that the TRO issued on June 8, 2012, and
expired two days later on June 10, 2012, pursuant to its own terms. We also acknowledge
that the record reveals that Lauderdale raised no prior challenge to the sufficiency of the
evidence supporting the TRO’s issuance and that he filed no motion to dissolve or modify
the TRO. See M.R.C.P. 65(b).
¶37. Upon review, we, like the chancellor, find the record contains substantial credible
evidence to support the chancellor’s issuance of the TRO. The evidence shows that
Lauderdale ignored the Board of Supervisors’ denial of his request to expand the conditional-
use permit. In addition, the record contains substantial credible evidence to support the
chancellor’s determination that a TRO was necessary to prevent immediate and irreparable
injury to the neighbors of the race track, the surrounding community, and the County until
the merits could be determined. As a result, we find no merit to Lauderdale’s argument that
the chancellor abused her discretion by granting the TRO to prohibit the racing event on the
weekend of June 9, 2012.8
B. The Preliminary Injunction
¶38. We acknowledge that, before issuing a preliminary injunction, a chancellor must
balance the following factors: (1) whether a substantial likelihood exists that the plaintiff
will prevail on the merits; (2) whether the injunction is necessary to prevent irreparable
injury; (3) whether threatened injury to the plaintiff outweighs the harm an injunction might
8
See Gunn, 75 So. 3d at 1020 (¶13).
18
cause to the defendant; and (4) whether the entry of a preliminary injunction is consistent
with the public interest. A-1 Pallet Co., 40 So. 3d at 568-69 (¶19).9 The plaintiff must prove
these factors by a preponderance of the evidence. His Way Inc., 909 So. 2d at 744 (¶14). We
now turn to a review of the application of the law to the facts of this case.
¶39. In her order granting the preliminary injunction, the chancellor found the County
showed a probability of success on the merits as to its allegations that Lauderdale violated
the Board of Supervisors’ decision and the prior-notice terms of the conditional-use permit
and created a public nuisance with public health concerns. Based on her findings, the
chancellor concluded that preliminary injunctive relief was required to prohibit the public
racing events on the specific weekends of August 10, 2012, and September 7, 2012. The
chancellor also determined that the threat of injury to the County outweighed the possible
harm to Lauderdale. In issuing the preliminary injunction, the chancellor provided that
Lauderdale scheduled and previously hosted a race the weekend of June 23, 2012, without
providing the Planning Commission the thirty days’ advance notice required by the
conditional-use permit.
¶40. Upon the denial of Lauderdale’s motion for damages that he filed on April 22, 2013,
the chancellor reviewed the evidence supporting the prior issuance of the TRO and the
preliminary injunction. In so doing, she concluded that sufficient evidence indeed supported
9
See also Jeffrey Jackson, Donald E. Campbell & Justin L. Matheny, Mississippi
Practice Series: Mississippi Civil Procedure § 19:12 (2015) (discussing the similarities and
differences between TROs and preliminary injunctions).
19
the issuance of the preliminary injunction. In reviewing this assignment of error, we also
acknowledge that Lauderdale failed to challenge the sufficiency of the evidence supporting
the preliminary injunction’s issuance until almost a year and a half after the injunction
expired. Moreover, the record reflects that Lauderdale filed no motion to modify or dissolve
the preliminary injunction.10
¶41. Although the record shows that Lauderdale received notice of the hearing in which
the chancellor granted the preliminary injunction, he failed to appear or to present evidence
at the hearing. See M.R.C.P. 65(a). Furthermore, the chancellor issued the preliminary
injunction on July 2, 2012, to prohibit specific publicly advertised racing events. The
preliminary injunction then expired on its own terms on September 9, 2012. The record
reflects that the chancellor continued the case by her order dated August 13, 2012, and that
she noted in the order that Lauderdale had retained counsel. Lauderdale nonetheless allowed
the preliminary injunction to expire according to its own terms on September 9, 2012. The
chancellor ordered no further injunction or continuing injunction during the continuance of
the matter.
¶42. As acknowledged, precedent establishes that the facts before the chancellor to support
the issuance of a preliminary injunction must be proven by a preponderance of the evidence.
10
Cf. Invesat Corp. v. Harrison Enters. Inc., 386 So. 2d 721, 721 (Miss. 1980)
(allowing an interlocutory appeal from the chancellor’s order overruling a motion to dissolve
a preliminary injunction). See also M.R.A.P. 5(a) (discussing interlocutory appeals by
permission).
20
His Way Inc., 909 So. 2d at 744 (¶14).11 After reviewing the record, we find no abuse of
discretion by the chancellor’s issuance of the preliminary injunction against Lauderdale.12
The record contains substantial credible evidence to support the chancellor’s factual
determinations and to support her issuance of the narrowly tailored preliminary injunction.
The record reflects substantial evidence to show that Lauderdale violated the requirements
of the conditional-use permit, including the thirty-day prior-notice requirement.
Additionally, the record shows that Lauderdale failed to appear at the hearing to challenge
the issuance of the preliminary injunction and that he asserted no motion to dissolve or
modify the preliminary injunction. Substantial credible evidence also supports the
chancellor’s finding that the preliminary injunction was necessary to prevent racing events
scheduled on various specific dates in violation of the conditional-use permit. Thus, we find
that this issue lacks merit.
C. Lauderdale’s Claim for Monetary Damages Related
to the TRO and the Preliminary Injunction
¶43. Since the record reflects substantial credible evidence to support the chancellor’s
issuance of both the TRO and the preliminary injunction, we find no error in the chancellor’s
denial of Lauderdale’s related claim for monetary damages.
¶44. Our precedent acknowledges that “[t]he wrongful acquisition of a preliminary
11
Furthermore, we again acknowledge that a preliminary injunction does not involve
a final determination of the merits but prevents a threatened injury or damage pending a final
determination of the merits. See Gunn, 75 So. 3d at 1021 (¶17).
12
See Griffith, 997 So. 2d at 224 (¶25).
21
injunction permits the enjoined party to recover damages and attorneys’ fees.” Cox v.
Trustmark Nat’l Bank, 733 So. 2d 353, 355-56 (¶9) (Miss. Ct. App. 1999) (emphasis added).
See also M.R.C.P. 65(c) (“No restraining order or preliminary injunction shall issue except
upon the giving of security by the applicant, in such sum as the court deems proper, for the
payment of such costs, damages, and reasonable attorney’s fees as may be incurred or
suffered by any party who is found to have been wrongfully enjoined or restrained . . . .”)
(emphasis added). In addition, Mississippi Code Annotated section 11-13-37 (Rev. 2004)
allows a chancellor to determine damages upon hearing a motion to dissolve an injunction.
¶45. In the present case, however, the record fails to show that Lauderdale was ever
wrongfully enjoined. The record further reveals that Lauderdale never filed any motion to
dissolve or modify the TRO. Instead, Lauderdale allowed the June 8, 2012 TRO to expire
two days later pursuant to its own terms.13 Then, Lauderdale failed to appear or to present
evidence at the subsequent hearing in which the chancellor granted the preliminary
injunction.14 Following the chancellor’s grant of the preliminary injunction to close the race
track on the weekends of August 10, 2012, and September 7, 2012, Lauderdale raised no
motion to dissolve or modify the preliminary injunction before its expiration.15 Instead, like
13
See M.R.C.P. 65(b).
14
See M.R.C.P. 65(a).
15
Cf. Alfonso v. Gulf Publ’g Co., 87 So. 3d 1055, 1059 (¶14) (Miss. 2012) (finding
that the motion to compel had already been ruled upon and that no appeal had been taken
within thirty days of that ruling). See also M.R.A.P. 5(a) (discussing interlocutory appeals
by permission).
22
the TRO, Lauderdale allowed the preliminary injunction to expire pursuant to its own terms
on September 9, 2012.
¶46. As previously stated, the record contains substantial credible evidence to support the
chancellor’s issuance of both the TRO and the preliminary injunction and to support her
finding that neither the TRO nor the preliminary injunction ever wrongfully enjoined
Lauderdale.16 As a result, we find no merit to Lauderdale’s argument that the chancellor
erred by denying his claim for monetary damages related to the issuance of the TRO and the
preliminary injunction.
III. Whether the chancellor abused her discretion by awarding
Lauderdale the attorney’s fees and expenses he incurred in
defending against the County’s amended application for a
permanent injunction.
¶47. On cross-appeal, the County argues that the chancellor abused her discretion by
awarding Lauderdale attorney’s fees and expenses related to the County’s amended
application for a permanent injunction. We review the chancellor’s award of attorney’s fees
for abuse of discretion. See Parker v. Benoist, 160 So. 3d 198, 212 (¶32) (Miss. 2015). In
reviewing this issue, we acknowledge that attorney’s fees may only be awarded where
allowed by statute or contract. See In re Guardianship of Duckett, 991 So. 2d 1165, 1179
(¶30) (Miss. 2008).17 We also acknowledge that section 11-13-37 and Rule 65(c) establish
16
See Phillips, 45 So. 3d at 692 (¶23).
17
See also Miss. Code Ann. § 11-13-37 (allowing a chancellor to determine damages
upon hearing a motion to dissolve an injunction).
23
that attorney’s fees may be awarded as part of damages upon a motion for dissolution or
when a party suffers wrongful enjoinment.18
¶48. The County asserts that no attorney’s fees may be awarded because Lauderdale was
never wrongfully enjoined. The County further contends that the chancellor concluded as
much in her judgment on Lauderdale’s claim for damages and fees when she determined the
record contained sufficient evidence to support the issuance of the TRO and the preliminary
injunction. Citing Rule 65(c), the County argues that, absent a finding of wrongful
enjoinment, the chancellor abused her discretion by awarding Lauderdale his attorney’s fees
and expenses in defending against the County’s amended application for a permanent
injunction since no permanent injunction ever issued. Upon review, we agree.
¶49. After the preliminary injunction expired on September 9, 2012, the record establishes
that the chancellor issued no further or continuing injunctions against Lauderdale.19 In
denying the County’s amended application for a permanent injunction in her order entered
April 18, 2013, the chancellor found that the permit’s thirty-day prior-notice requirement
provided a sufficient remedy proscriptively. We also acknowledge that the two public racing
18
See Cox, 733 So. 2d at 355-56 (¶9); George D. Warner Jr., Warner’s Griffith
Mississippi Chancery Practice § 464 (1991).
19
We acknowledge the record shows that Lauderdale failed to challenge the
sufficiency of the evidence supporting the awarded preliminary injunctive relief. He failed
to appear at the hearing in which the chancellor granted the preliminary injunction, and he
failed to file any motions to dissolve or modify the TRO or the preliminary injunction. See
M.R.C.P. 62(c); M.R.C.P. 65(a). See also Howell v. McLeod, 127 Miss. 1, 1, 89 So. 774,
775 (1921) (acknowledging that, where an injunction is issued and no effort is made to
dissolve it until a trial on the merits, attorney’s fees to the defendant cannot be allowed).
24
events cited in the County’s amended application were no longer an issue or a threat since
they had already occurred on September 30, 2012, and December 9, 2012. Nonetheless, in
her order entered April 8, 2014, the chancellor awarded Lauderdale the attorney’s fees he
incurred in defending against the County’s amended application for a permanent injunction
even though no permanent injunction was ever issued, modified, or dissolved.
¶50. In considering Lauderdale’s claim for damages related to the County’s amended
application for a permanent injunction, the chancellor stated:
Lauderdale incurred attorney’s fees in defense of the action taken by [the
County] to obtain a [p]ermanent [i]njunction . . . to close the track for
[Lauderdale’s] alleged violations of the terms of his [c]onditional[-][u]se
[p]ermit[,] and he is entitled to recover a sum sufficient to reimburse him for
attorney’s fees and expenses of litigation incurred in defense of that matter
pursuant to Rule 65 . . . . The attorney’s fees and expenses incurred by . . .
Lauderdale in this matter are found to be reasonable and necessary as
supported by [a]ffidavits filed in this cause.
¶51. The chancellor abused her discretion by erroneously awarding Lauderdale attorney’s
fees as damages for defending against the County’s amended application since neither
Lauderdale nor the track was ever wrongfully enjoined. As stated, section 11-13-37 and Rule
65(c) allow the chancellor to award attorney’s fees as damages upon a motion for dissolution
or where a party suffers wrongful enjoinment.20 The record here reflects that no permanent
20
Rule 65(c) states:
No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for
the payment of such costs, damages, and reasonable attorney’s fees as may be
incurred or suffered by any party who is found to have been wrongfully
25
injunction ever issued on the County’s amended application for such relief and that
substantial credible evidence supported the TRO and the preliminary injunction. As
discussed, after the preliminary injunction expired on September 9, 2012, the chancellor
issued no further injunctions.
¶52. In Cox, this Court recognized that “[t]he [attorney’s] fees are those ‘incurred or
suffered by any party who is found to have been wrongfully enjoined,’ which makes the
erroneous injunction the key.” Cox, 733 So. 2d at 356 (¶10) (quoting M.R.C.P. 65(c)).
Stated otherwise, the damages to which a defendant is entitled on dissolution of an injunction
include attorney’s fees for procuring an injunction’s dissolution but not for defending on the
merits. Lundy v. Greenville Bank & Trust Co., 179 Miss. 282, 282, 174 So. 802, 814 (1937);
Mims v. Swindle, 124 Miss. 686, 686, 87 So. 151, 151-52 (1921).
enjoined or restrained; provided, however, no such security shall be required
of the State of Mississippi or of an officer or agency thereof . . . .
The comments to Rule 65 further state that “Rule 65(c) requires that proper security
be given by the movant obtaining a TRO or preliminary injunction so that proper payment
for costs, damages[,] and reasonable attorneys’ fees may be made to the restrained party in
the event it is determined that such party was wrongfully enjoined or restrained.” M.R.C.P.
65 cmt. See also Curphy & Mundy v. Terrell, 89 Miss. 624, 624, 42 So. 235, 235-36 (1906)
(“[C]ounsel fees caused by the wrongful issuance of the injunction are properly recoverable
both for services in securing the dissolution in the lower court and for services in preventing
that decree from being reversed in the [Mississippi] Supreme Court, because all such
services, so rendered, are rendered in the effort to dissolve the injunction and keep it
dissolved, and the fees in both courts are directly occasioned as damages by the wrongful
issuance of the injunction, always provided that the fees in the [s]upreme [c]ourt in such
case are fees rendered solely in resistance of an interlocutory appeal to reverse the decree
dissolving the injunction.”).
26
¶53. Since the chancellor denied the County’s amended application for a permanent
injunction, and since the record contains substantial credible evidence to support her prior
issuance of the TRO and the preliminary injunction, the record reflects that Lauderdale was
never wrongfully enjoined or restrained. Therefore, no basis existed to support the award of
attorney’s fees to Lauderdale. As a result, the chancellor abused her discretion by
erroneously awarding Lauderdale the attorney’s fees and expenses he incurred by defending
against the County’s amended application seeking a permanent injunction.21 Accordingly,
we reverse the portion of the chancellor’s judgment that grants Lauderdale’s claim for
monetary damages incurred in defending against the County’s permanent-injunction action.
CONCLUSION
¶54. We affirm in part and reverse and render in part the chancellor’s judgment. We affirm
the chancellor’s denial of Lauderdale’s claim for damages related to the TRO and to the
preliminary injunction.22 However, because Lauderdale was never wrongfully enjoined, we
find that the chancellor abused her discretion by awarding Lauderdale $9,661.39 for
attorney’s fees and expenses related to the County’s unsuccessful action seeking a permanent
injunction.23 We therefore reverse and render that portion of the chancellor’s judgment.
21
See Miss. Code Ann. § 11-13-37; M.R.C.P. 65(c). See also Giles v. Desporte Ins.
Agency, 253 Miss. 190, 193, 175 So. 2d 616, 617 (1965) (finding the defendant was not
entitled to attorney’s fees).
22
See Parker, 160 So. 3d at 212 (¶32); Miss. Code Ann. § 11-13-37; M.R.C.P. 65(c).
23
See id.27
¶55. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES
AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.
28